Federal Constitutional Court - Press office -

Press release no. 14/2009 of 18 February 2009

Order of 28 October 2008 – 1 BvR 462/06 –


Unsuccessful constitutional complaint of a non-believing theology
professor challenging his exclusion from training theologians


The complainant has been a professor in the theology faculty of a
university in Lower Saxony since 1983 and was originally engaged for
the subject “New Testament” in teaching, research and further training.
After he publicly renounced the Christian faith, he was required to
teach the subject “History and Literature of Early Christianity”. This
subject was allocated to the Institute for Special Research, and the
complainant’s courses were announced in the university calendar with
the added words “not part of the course of studies to train prospective
theologians”. The complainant initiated proceedings against this at the
administrative courts; his action failed at all instances. 

The First Senate of the Federal Constitutional Court rejected the
constitutional complaint as unfounded and held that the exclusion from
the training of theologians related to a particular religious
denomination of a theology professor who had renounced his faith by
allocating him another subject is compatible with the freedom of
scholarship. The Senate held that in the present case it was
permissible for more weight to be attached to the church right of self-
determination and the right of the faculty to preserve its identity as
a theology faculty and to fulfil its duties in the training of
theologians than to the complainant’s freedom of scholarship. 

In essence, the decision is based on the following considerations:

For lecturers at institutions of higher education, the core of the
freedom of scholarship, which is protected by Article 5.3 sentence 1 of
the Basic Law (Grundgesetz – GG) is the right to be responsible for
their subject in research and teaching. This freedom is also decisively
shaped by the teaching position conferred on them. Necessarily,
therefore, a change of the subject for which a lecturer is responsible
affects the content of freedom of scholarship. When the complainant was
allocated the subject “History and Literature of Early Christianity”
instead of the subject “New Testament”, and as a result he was no
longer involved in the training of theologians related to a particular
religious denomination, there was an encroachment on the freedom of
scholarship. In addition, the freedom of scholarship is affected by the
fact that as a result of the transfer from a core subject to a
peripheral subject that is not relevant to training, the complainant is
given a position that is markedly diminished in its significance in the
university’s teaching and research context and this represents a
reaction of the state to specifically academic pronouncements and
ositions. It is this that specifically realises the danger against
which Article 5.3 sentence 1 GG is intended to protect. 

However, the encroachment on the freedom of scholarship is justified
with regard both to the church right of self-determination (Article 140
GG in conjunction with Article 137.3 of the Weimar Constitution
(Weimarer Reichsverfassung – WRV)) and to the rights of the faculty,
which in turn are protected by Article 5.3 GG. 

The freedom of scholarship of university theology lecturers finds its
limits in the right of self-determination of religious communities. The
Basic Law permits theology to be taught as an academic discipline at
state universities. If state theological faculties have been
established, the right of self-determination of the religious community
whose theology is the subject of the teaching that is related to a
particular religious denomination must be taken into account. The
position of a lecturer at an institution of higher education may
therefore be designed to be related to a particular religious
denomination. It cannot and may not be the concern of the state, which
is neutral in religious and ideological matters, to make the decision
as to whether theological teaching is appropriate to a religious
denomination. Instead, this is a right of the religious community
itself. 

The complainant’s freedom of scholarship also finds its limits in the
right of the faculty, itself protected by Article 5.3 GG, to preserve
its identity as a theology faculty and to fulfil its duties in the
training of theologians. The teaching and research duties of a theology
faculty are essentially shaped by the need for the teaching to be
appropriate to a religious denomination. This function is endangered if
the lecturers publicly no longer maintain the beliefs of the church.
The existence of a theology faculty would be endangered if the church
no longer regarded the doctrine taught there, above all in a core
subject such as “New Testament”, as appropriate to a religious
denomination and consequently no longer accepted its graduates as
clergy and did not permit teachers of religious education trained in
the faculty to teach religious education related to a particular
religious denomination. In the case of Protestant faculties, in
addition, the church – unlike the Catholic Church, with its mandatory
teaching authority (magisterium) – primarily leaves it to them to
ensure that the teaching remains appropriate to a religious
denomination. 

The measure taken by the university, which is challenged, and the
administrative-court decisions were ultimately correct when they
weighed the freedom of scholarship of the complainant against the
opposing constitutional concerns, and in doing so they observed the
principle of proportionality. 

The transfer of the complainant from the subject “New Testament”, which
is related to a particular religious denomination, to the subject
“History and Literature of Early Christianity”, which is not related to
a particular religious denomination, and his removal from the training
of prospective theologians, take account of the church right of self-
determination and promote the purpose of preserving the functioning of
the faculty of theology. The complainant may reasonably be expected to
accept the transfer to the new subject, because he retains his position
as a lecturer at an institution of higher education and he has been
given a subject which is largely similar to his original subject. He
may continue without hindrance to offer courses, to research and
publish in an area determined by himself, and to impart the results of
his research to the students. Nor do the consequences of the transfer
for the complainant’s position in teaching and examination make the
measure unreasonable. However, the fact that the complainant’s new
subject is not part of the examination and study regulations of the
theology faculty has a considerable adverse effect on his freedom of
teaching. Lecturers at institutions of higher education have rights to
participate in the teaching of students and in the encouragement of the
next generation of academics, which give their position its character.
But the non-constitutional courts proceeded without infringement of the
constitution on the basis that the complainant’s new subject may still
be integrated appropriately into the study and examination regulations,
and that the enforcement of a petition to this effect is not a matter
for the present proceedings, but for future negotiations. 



This press release is also available in the original german version.